Francis v. Dugger

• Decision Date: 07 October 1988
• Docket Number: No. 88-10075-CIV.,88-10075-CIV.
• Citation: 697 F. Supp. 472
• Parties: Bobby Marion FRANCIS, Petitioner, v. Richard L. DUGGER, Secretary, Department of Corrections, Respondent.
• Court: U.S. District Court — Southern District of Florida

697 F. Supp. 472

Bobby Marion FRANCIS, Petitioner, v. Richard L. DUGGER, Secretary, Department of Corrections, Respondent.

No. 88-10075-CIV.

United States District Court, S.D. Florida, Miami Division.

October 7, 1988.

Billy H. Nolas, Office of the Capital Collateral Representative, Tallahassee, Fla., for petitioner.

Ralph Barreira, Asst. Atty. Gen., Dept. of Legal Affairs, Miami, Fla., for respondent.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

NESBITT, District Judge.

This cause is before the court upon Bobby Marion Francis' Petition for Writ of Habeas Corpus, filed on October 3, 1988. Because the State had scheduled Francis' execution for 7:00 A.M. on October 4, 1988, this court granted an emergency motion for stay of execution pending the resolution of the petition. For the reasons set forth below, the Petition for Writ of Habeas Corpus is Denied.

Background

On March 29, 1985, a Dade County jury convicted Francis of first-degree murder for the 1975 death of Titus Walters.¹ The jury recommended a life sentence, but the trial judge overrode that recommendation and imposed the death penalty.² The verdict and sentence were affirmed on direct appeal. Francis v. State, 473 So.2d 672 (Fla.1985), cert. denied, 474 U.S. 1094, 106 S.Ct. 870, 88 L.Ed.2d 908 (1986). After the Governor signed a death warrant for Francis on September 15, 1987, Francis filed two collateral attacks on his death sentence: a petition for writ of habeas corpus in the Florida Supreme Court, and a Rule 3.850 motion in the trial court. Both attacks were ultimately unsuccessful. See Francis v. Dugger, 514 So.2d 1097 (Fla. 1987) (denying habeas petition) and Francis v. State, 529 So.2d 670 (Fla.1988) (affirming trial court's denial of post-conviction relief).³ On September 8, 1988 the Florida Supreme Court denied Francis' petition for rehearing on the 3.850 (Fla.R. Crim.P.) Motion; the governor signed Francis' second death warrant on September 12. On October 3, Francis filed this habeas petition. This court heard oral argument on the petition on October 3 and again on October 5.

The petition raises eight challenges to Francis' conviction and death sentence, and requests an evidentiary hearing on most of those claims. As the United States Court of Appeals for the Eleventh Circuit has noted,

Case law clearly establishes that where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court.

Agan v. Dugger, 835 F.2d 1337, 1338 (11th Cir.1987) (quoting Townsend v. Sain, 372 U.S. 293, 312-13, 83 S.Ct. 745, 756-57, 9 L.Ed.2d 770 (1963)). See also 28 U.S.C. § 2254 (1982). After a careful and detailed review of the entire record in this case, and after consideration of oral arguments presented, the court concludes that each of Francis' challenges either raises no disputed issues of fact, or was the subject of a full and fair evidentiary hearing in state court. Specifically, the court finds that the alleged trial errors do not involve disputed facts, and that the claim of ineffective assistance of counsel was given full consideration in the 3.850 hearing.⁴

I. TRIAL ERRORS

A. Prohibition of full cross-examination of Deborah Wesley

On the first day of trial, Francis' counsel informed the court that a local newspaper reporter had told him that a State witness, Deborah Wesley, had been charged with second degree murder two weeks earlier. The homicide occurred in Monroe County, Florida and was unrelated to Francis' case. Defendant's counsel urged that the prosecutor's failure to disclose this arrest was not only a discovery violation but constituted prosecutorial misconduct. Defense counsel requested an opportunity to depose the witness and to investigate the case. The prosecutor responded that he had not spoken to Wesley about her pending charges, and did not wish to in order to avoid the appearance of giving her favorable treatment. The prosecutor suggested that defense counsel could only inquire into whether the State had made Wesley any "offers, deals or promises" for her testimony. Additionally, the prosecutor stated that he was under no duty to disclose the incident because he knew of no evidence favorable to the accused.

The trial court found no prosecutorial misconduct and denied an adjournment of the trial, suggesting that Wesley's deposition could be taken later — the day after the completion of jury selection. The State moved to prevent the defense from questioning Wesley about the charges pending against her. The court did not limit the parameters of the deposition but stated that he would consider the State's motion in limine after the deposition was taken.

Two days later, after Wesley had been examined and cross-examined at trial, defense counsel again sought to revisit the court's ruling concerning the murder charge. He acknowledged that he had discovered no information concerning any specific deal made by the State, but proffered his desire to cross-examine Wesley as to the charge so that the jury could consider her truthfulness, bias, and possible motive for testifying. The trial court denied the proffer. At the conclusion of the trial, the prosecutor noted that Wesley's deposition had been taken and that she had answered questions under oath regarding any promises, threats or coercion from the State.⁵ She had declined to answer questions about the specific incident of the second degree murder charge. Defense counsel again stated that he wanted to bring the murder charge to the jury's attention so that they could determine whether she was testifying to promote her own best interests.⁶

When the defendant's guilt or innocence may turn on the reliability of a witness, the prosecutor's nondisclosure of evidence affecting the credibility or bias of the witness may deprive the accused of the guarantees of the Confrontation Clause of the sixth amendment. Particularly relevant here is the well-recognized function of cross-examination to elicit and expose a witness' motivation for testifying. Davis v. Alaska, 415 U.S. 308, 316-17, 94 S.Ct. 1105, 1110-11, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). However, the Confrontation Clause protects the opportunity for effective cross-examination, not any and all cross-examination the defense may want to pursue. Delaware v. Fensterer, 474 U.S. 15, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985). The sixth amendment does not prevent a trial judge from imposing reasonable limitations on cross-examination when balancing concerns of harassment, prejudice, and confusion or lack of relevancy. Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986).

The State argues that there was no relevance or "logical nexus" between the pending second degree murder charge and Wesley's possible bias or motive for testifying. Although the witness was cross-examined as to other matters, it cannot be said that this area of inquiry was not critical to the jury evaluation of her motive for testifying, in view of imminence and seriousness of the second degree murder charge. The trial judge prohibited all inquiry into the possibility that Wesley's motivation in testifying was anticipation that her charge would either not be increased to first degree murder or might be reduced to a lesser charge or that she might otherwise be motivated to favor the state. A criminal defendant properly demonstrates a violation of the Confrontation Clause by showing that he was prevented from conducting cross-examination that would have "exposed to the jury the facts from which jurors could appropriately draw inferences relating to the reliability of the witness." Davis v. Alaska, 415 U.S. at 318, 94 S.Ct. at 1111.

The State's counterargument is that Wesley's testimony after her arrest was consistent with her testimony at Francis' second trial. The State has submitted a supplemental appendix to the record containing Wesley's prior testimony. The State concludes that even if the pending charge had been elicited, the jury would have been able to hear that her testimony was consistent and had not been slanted to gain favor with the State. The court finds that curtailing the cross-examination of a witness with serious state charges pending against her did not "place the witness in her proper setting," and therefore did not put the weight of her testimony and her credibility to a test fully and fairly before the jury. Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931). Francis has demonstrated that a Confrontation Clause violation occurred when the trial judge prohibited the proposed area of cross-examination. The issue of credibility, and of the weight to be given to prior consistent statements, was appropriate to put before the jury.

The inquiry, however, does not end here. The United States Supreme Court has held that the improper denial of a defendant's opportunity to impeach a witness for bias and motive must be viewed in light of the Chapman v. California harmless error analysis. Chapman, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). In Van Arsdall, the Supreme Court discussed the relevant factors in determining whether a Confrontation Clause violation is harmless:

These factors include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.

Van Arsdall, 106 S.Ct. at 1438 (citing Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284 (1969); Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 1059, 31 L.Ed.2d 340 (1972)).

Wesley was one of four eyewitnesses who testified about the...